Case Information
*1 c- -
R-488 THEATTOEWEYGENERAL
BFTEXAS
PRICE DANIEL ATTORNEY GENERAL
June 5, 1947 Opinion No. O-235 Hon. H. L. Roberts County Auditor Re: Constitutionality of
Hutchinson County an Act which only ap- Stinnett, Texas -
plies to counties within population Dear Sir:
brackets shown by the census of 1940.
We refer to your letter of May 12, 1947, in which you submit the following:
"Our Commissioners' Court desires a ruling by your Department as to the con- stitutionality of that part of Chapter 50, H.B. No. 51, amending Article 5142, passed by the present Legislature, which reads as follows:
'"'Provided further that in counties having a population of not less than Nih+ teen Thousand (19,000) and not more than fifty thousand (50,000) as shown by the 1940 Federal Census and whi.ch has an assess- ed valuation of taxable property of not less than Twenty-five Milli.on Dollars (#25,- OOO,OOO), one juvenile officer may be ap- pointed by the Commissioner's' Court, whose salar may not exceed Three Hundred Dollars (33OOV P er month and expenses not to exceed Six Hundred Dollars ($600) per year.'
"Hutchinson County has a population of 19,069 as shown by the 1940 Federal Census, and a Tax Roll valuation of $29,394, 725.00 as shown by the 1946 tax roll." (Emphasis added)
The language "having a population of not less than nineteen thousand (19.000) and not more than fiftv thousand (50,000), as shown by.the 1940 Federal census; and which has an assessed valuation of taxable property of not less than Twenty-five Million Dollars ($25,OOO,- OOC)," definitely confines the application of the Act ,to ,the counties which met those requirements at the ef-
-- Hon. II. L. Roberts, Page 2
feotive date of the Act. No other county can ever come into the same class because of the tie to the 1940 census and to the present tax rolls of the counties now in the class. The provisions of the Act only apply to the oounties of Bell, Brazoria, Duval, Ellis, Fort Bend, Gray, Hutchinson,,Jim Wells, Montgomery, Tom Green, Van Zandt, Victoria, Wharton and Wood.
Section 56 of Article III of the State Con- stitution reads in part:
"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or speoial.law, authorizing...
"Regulating the affairs of counties, oities, towns, wards or school districts."
The Supreme Court of Texas held in the case Of Altgelt v. Gutzeit, 109 Tex..l23, 201 S.W. 400, tha t an Act fixing the salaries of County Commissioners was an Act "regulating the affairs of counties" within the purview of the Constitution, and that an attempt to do so by local or special law was void.
In the case of,City of Fort ,Worth v. Bobbitt, 36 2d, 470, the Court had the question of the validity of an Act which applied to cities having a population of not.less than 106,000 inhabitants and not more than 110,000 inhabitants according to the census of 1920. The Court said:
"The Constitution in plain and simple ,. terms prohibits the enactment of any local
or special law regulating the affairs of .' cities, or changing their charters. It can- not be denied that this law does have ref-' erenoe to regulating the affairs of cities.
If it is a local or special law, it is therefore.unconstitutionsl and void...
"If we should hold this law to be con- stitutional when it describes and confines its application to one city, we would in effect be holding the constitutional pro- vision under discussion an idle and vain thing, and can be evaded by a subterfuge.
We therefore hold that the Act in question is unoonstitutional and void."
Hon. H. L. Roberts, Page 3
The Court then quotes, from Lewis' Sutherland Statutory Construction'(26 ed) p. 397, et seq., as fol- lows:
"A classifioation based upon existing or past conditions or facts and which would exclude the persons, places, things or ob- jeots,thereafter coming into the sit;;",;o; or condition, isspecial and void. classification of cities or counties based upon existing population or upon the popu- lation shown by specific census is of this character."
The Texas Court of Criminal Appeals quoted ex- tensively from the City of Fort Worth case and followed its conclusions in Smith v. State, 49 2d 739.
The case of City of Fort Worth v. 'Bobbitt, Attorney General, supra, should not be confused with City of Fort Worth v. Bobbitt, Attorney General, 41 S.X. '2d 228. 'In the latter case the Court held a sta- tute constitutional which applied to "cities in the State of Texas, having a population of more than 100,000 inhabitants according to the last receding United States census." (Emphasis added). -<ording, *'last preoed- ingn census, allows other cities or counties tocome within the situation or condition in the future, and. when based upon otherwise reasonable olassifioations, such laws have been upheld. Such cases only emphasize the invalidity of a special a,ot limited to the 1940. census and 1947 valuations.
We are of the opinion that the provision of E. B. No. 51 passed by the 50th Legislature inquired about in your letter is a local or special law and un- constitutional.
That part of H. B. No. 51, Acts of the 50th Legislature amending Article 5142,R.C.S. which fixes salaries of juvenile officers and which definitely confines its application to counties between a maximum and a minimum population according to the census of 1940; or which only applies to counties having a taxable valuation of more than a stated amount at the effective date of the Act, is *4 Hon. H. L. Roberts, Page 4
a local or special law regulating the af- fairs of counties and is unconstitutional.
Const. Art. III, Sec. 56; Altgelt v. Gut- zeit, 109 Tex. 123, 201 S.W. 400; City ol Fort Worth v. Bobbltt, 36 S.W. 26 470.
Very truly yours, ATTORNEY GENERAL OF TEXAS BY T. Williams Assistant API'ROVED JUNE 5, 1947 ,’ j!2lddld
ATTORNEY GENER&L w~~:ajm*